This FFUSA Affiliate Agreement (“Agreement”) contains the terms and conditions that govern your participation in the FFUSA Affiliate Program (“Program”), which is operated by FFUSA and its affiliates (collectively, “we”, “us”, “our” or “FFUSA”). Any person or entity that participates or attempts to participate in the Program (such person or entity, “you”, or an “Affiliate”) must accept this Agreement without change.
By registering for the Program, you have agreed to the terms and conditions of this Agreement, without change and have entered into a legal contract between you and FFUSA; provided, however, that this Agreement shall not be effective until we determine that you are eligible to participate in the Program.
WHEREAS, FFUSA is a registered Independent Sales Organization (ISO) with VISA, U.S.A., and a registered Member Service Provider (MSP) with MasterCard, International, and maintains contractual agreements with MasterCard, VISA U.S.A. and Member Banks (hereinafter “Banks”), currently Wells Fargo Bank, NA, Walnut Creek, CA (this may change from time to time) and or is an agent of an ISO/MSP, whereby FFUSA solicits prospective merchants to apply to Banks for Merchant Agreements, and provides and or offers various and sundry merchant services to merchants; and,
WHEREAS, FFUSA desires to retain AFFILIATE as an independent contractor to solicit prospective SALES MEMBERS to who would then solicit merchants apply to “Banks” for Merchant Agreements and offer various FFUSA AND non-FFUSA products and or services to merchants, and AFFILIATE desires to render such assistance to FFUSA in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, FFUSA and AFFILIATE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, do hereby agree as follows:
1. Relationship of Parties. FFUSA and AFFILIATE acknowledge and agree that AFFILIATE’s relationship with FFUSA is solely that of an independent contractor (NOT an EMPLOYEE) and nothing herein contained shall be construed to constitute FFUSA and AFFILIATE as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking. AFFILIATE shall have no power or authority, express or implied, to represent, act for, or otherwise create or assume any obligation on behalf of, or binding upon, FFUSA other than as expressly set forth herein. As a AFFILIATE, it is understood and agreed that AFFILIATE is not entitled to participate in any group medical plans, pension plans, bonus, stock, or similar benefits that FFUSA provides to its employees. It is further understood and agreed that AFFILIATE is responsible for paying (and that FFUSA has no responsibility to withhold on AFFILIATE’s behalf) any and all required state and federal taxes, including, but not limited to FICA (Social Security), unemployment insurance, federal or state income taxes, disability insurance and workers’ compensation insurance. AFFILIATE acknowledges that each state may have its own set of unique requirements to achieve Independent Contractor status and AFFILIATE agrees to understand and abide by those requirements and attests at this time that they are in any definable way or interpretation, an Independent Contractor. AFFILIATE may employ such personnel, as it deems necessary to complete performance. FFUSA may not direct such employees, and the AFFILIATE takes full responsibility for paying all compensation and expenses of its employees and/or subcontractors, including (but not limited to) all related local, state and federal taxes, unemployment insurance, Social Security/Medicare, disability insurance, and other applicable withholdings, payroll taxes, and workers’ compensation insurance premiums. AFFILIATE understands and agrees that AFFILIATE is responsible for its operating expenses and that AFFILIATE may make a profit or loss depending upon their performance and their expenses.
(a) Wisconsin. Prior to becoming a AFFILIATE in Wisconsin, AFFILIATE agrees to obtain a Federal Employer Identification (EIN) number from the Federal Internal Revenue Service and shall provide such EIN number to FFUSA for its records.
2. AFFILIATE shall utilize its best efforts in the performance of its obligations hereunder, and shall at all times hereunder conduct itself in a reputable manner and in full compliance with all applicable laws, rules, regulations, decisions and orders, including any and all applicable rules and regulations of VISA and MasterCard. AFFILIATE understands that this Agreement is non-exclusive as to FFUSA, and that FFUSA reserves the right to enter into similar agreements with other independent contractors as AFFILIATEs of FFUSA.
3. Duties of AFFILIATE. The duties and obligations of AFFILIATE include the following:
a) Use of promotional methods that add value to FFUSA and bring legitimate, loyal SALES MEMBERS. For example:
Tell clients, customers or friends about FFUSA, and give them your affiliate referral link
Write a review or a blog post about FFUSA and link to our site with your referral link
Reach out to a broad audience with your social network accounts. Tweet about us on Twitter with your affiliate referral link, post about us on Facebook with your affiliate link, or communicate to your Linkedin followers with your affiliate link. Spam-free promotion is a great way to get more referrals!
If you have a large following we may be interested in a joint webinar or conference call where you would invite your followers.
b) Non-use of prohibited promotional methods. For example:
Any type of spam is prohibited. Links, ads, emails, comments… any type of spam. Please respect the posting rules of any 3rd-party websites you use to promote FFUSA. P.S. This is not an exhaustive list of spam methods; if we decide that your activity is spam, it’s spam.
Any illegal activity or activity deemed offensive by us is prohibited.
We’re flattered, but please don’t pretend to be part of FFUSA. Pretending to actually be FFUSA is 100% prohibited. Cloning our site, copying our site, using our copyrighted site assets, and pretending that a site created by you is an official FFUSA site is unethical and prohibited (this includes using services that automatically clone websites, or place them into iframes).
Any of the above may result in referrals being rejected and/or your affiliate account being deactivated. We really do appreciate your use of good solid promotional methods!
If you’re unsure or concerned that some activity you’re about to proceed with may be considered prohibited, please ask us.
(c) Approval / Disapproval of Referrals. FFUSA shall approve, reject, or place limitations on any approval of each applicant to become an Approved Advisor or Member.
4. Covenants and Warranties of AFFILIATE. AFFILIATE hereby warrants and represents to FFUSA the following:
(a) Exclusivity. To avoid confusion, when promoting a merchant services sales opportunity, AFFILAITE agrees to promote only FFUSA to prospective SALES MEMBERS.
(b) Non-Interference. Not to be confused with Non-Compete, which is an entirely different matter. With Non-Interference, AFFILIATE acknowledges and agrees that FFUSA has made a significant financial investment paying sales commissions (including paying SALES MEMBERS a substantial upfront revenue for merchants solicited and added to “BANKS” or FFUSA system) paying costs to convert or load merchant to “BANKS” and/or FFUSA system and servicing those merchants – in advance of any income or profit. In fact FFUSA starts out at a loss for every merchant added to the system.
As such, AFFILIATE agrees that so long as any Merchant Agreement of any merchant solicited by SALES MEMBERS remains in effect, and for a period not to exceed five (5) years after such date, AFFILIATE shall not interfere in any manner whatsoever with the contractual rights and interests of “Bank”s and/or FFUSA under any such Merchant Agreement, either directly or indirectly (including, without limitation, through any partnership, joint venture as an employee or other entity or arrangement whatsoever), or to cause or attempt to cause any approved merchant or other merchant of “Banks” and/or FFUSA to engage in bank card transaction processing through any person or entity other than of “Banks” and/or FFUSA. If AFFILIATE directly or indirectly violates the provisions of this Subparagraph 4(b), by its own act or omission or by permitting the act or omission of any other person or entity, then all payments due to AFFILIATE hereunder shall immediately cease and FFUSA shall have no further obligation to make any such payments and shall be entitled to all other remedies it may have under this Agreement or applicable law. The covenants of AFFILIATE and all other provisions of this Subparagraph 4(b) shall survive termination of this Agreement.
(b) Compliance with Laws. AFFILIATE will conform to and comply with all federal and state laws and regulations that are applicable to its provision of service and performance of its obligations set forth in this Agreement.
5. Compensation of AFFILIATE. Subject to the provisions of this Agreement, including without limitation thereto the provisions of Paragraphs 3, 4(a) and 4(b) and as provided further herein below, AFFILIATE shall be entitled to receive from FFUSA as compensation for the services rendered by AFFILIATE to FFUSA hereunder, the following:
The greater of 50% commission on SALES MEMBER Membership Fees or 3% Residual Income Bonus (Paragraph 5.a) from merchant activity generated by your directly recruited Sales Members and 20% commission on Membership Fees or 1% Residual Income Bonus (Paragraph 5.a) from merchant activity generated by Sales Members recruited by AFFILIATE(S) you recruited (referred to as Super Affiliate commission).
EXAMPLES: If SALES MEMBERS you recruit are paying $500 monthly, you earn 50% or $250 monthly x the number of paying SALES MEMBERS you recruited. If SALES MEMBERS that an AFFILATE you recruit are paying $500 monthly, then you earn 20% or $100 per month per paying SALES MEMEBER (as your Super Affiliate commission).
To calculate your monthly AFFILIATE income, FFUSA compares your total Membership Fee income vs. your total Residual Income Bonus and you are paid the greater of the two. Your Super Affiliate will be based on the same “whatever’s greater” per AFFILAITE you recruit. EXAMPLE: Your Super Affiliate income may be higher and therefore paid on Residual Income on one AFFILIATE and Membership Fees with another.
Because FFUSA offers a three (3) month unconditional money back guarantee to Members, your first commission for new MEMBERS will begin the first pay period following, but your Residual Income Bonus will begin quite possibly earlier, per Section 6; depending how fast your referred SALES MEMBERS land business.
(a) Residual Income Bonus. Active AFFILIATEs shall be entitled to a fee which is derived from “Bank’s” discount rates, transaction fees, qualified transactions, fines, nonqualified transactions, returns, monthly service fees and monthly minimum fees to merchants on net sales and which is paid to FFUSA by “Banks”, for each merchant solicited by AFFILIATE’s referred SALES MEMBERS and approved by “Banks”. For the purposes of this Agreement, it is understood and agreed that the term “Residual Income” shall mean the net income received by FFUSA from “Banks” for the above mentioned fees and related merchants. If SALES MEMBERS uses the Giveback, joint venture, referral or marketing partner who participates in Residual Income as well, those commissions are subtracted first and then AFFILIATES’ commissions are calculated. AFFILIATE shall be entitled to receive compensation as shown on Schedule A attached hereto and made a part of this Agreement for so long as the AFFILIATE AGREEMENT is active and FFUSA is receiving its corresponding compensation from “Banks” for such approved merchants, provided, however, that in any instance where this Agreement is terminated by FFUSA for any of the reasons enumerated in Paragraphs 3 or 4, 9(b) and 10(a) hereof, all payments to AFFILIATE hereunder shall cease, and FFUSA shall have no further obligation to make any such payments. Notwithstanding anything contained in this Agreement to the contrary, it is expressly understood and agreed that FFUSA shall be under no obligation to make any payment to AFFILIATE hereunder as to any merchant for which FFUSA is no longer receiving, for any reason whatsoever, its corresponding compensation from “Banks” (i.e. if FFUSA doesn’t get paid, then AFFILIATE doesn’t get paid). It is further understood and agreed that Residual Income Bonus is minus any liability, losses, chargebacks, fines or fees related to the Merchants. FFUSA or “Bank” shall maintain full ownership of the Merchant Agreements, including without limitation all Approved Merchants introduced to FFUSA by AFFILIATE. FFUSA reserves the right to sell at its sole discretion, said Merchant Agreements either in its entirety or in part. Nothing in this Agreement creates or grants any proprietary right, title or interest for or to AFFILIATE in the Merchant Agreements, or bankcard transaction generated hereunder.
(b) Offsets. AFFILIATE agrees that commissions or bonuses due to the AFFILIATE shall be subject to offset against any commission or bonus reversal due to, but is not limited to, accidental overpayment to AFFILIATE by FFUSA, chargeback for advance commission or bonus paid then SALES MEMBER cancels membership early. In the event that the amounts due AFFILIATE are insufficient to offset the amount of FFUSA’s liability, then AFFILIATE shall be obligated to make direct payment, or allow FFUSA to affect collection from AFFILIATE via bank ACH, to FFUSA in an amount necessary to reimburse FFUSA to the full extent of its liability.
(c) Sub Affiliates. If you are a master affiliate and are using a sub affiliate and wish to split compensation, you simply both need to complete an AFFILIATE AGREMENT and inform (in writing signed by both parties) FFUSA of the compensation spit percentage. Affiliate fee with someone else, that’s fine.
6. Accounting and Payment. FFUSA shall take all reasonable steps to pay all fees due and owing to AFFILIATE under Paragraph 5(a) (Membership fees or Residual Income Bonus) above on or before the Twentieth (20th) business day of each month, for all fees received by FFUSA during the same calendar month for Membership fees and the month prior for Residual Income Bonus.
7. Reporting. In conjunction with each fee payment, if any, from FFUSA to AFFILIATE pursuant to the provisions of Paragraphs 5(a) hereinabove, FFUSA shall provide to AFFILIATE a report setting forth the basis upon which the fee payment is computed.
8. Term of Agreement. Subject to any provision contained herein for early termination of this Agreement, this Agreement shall be effective upon the execution of same by both parties hereto and shall continue thereafter for an initial term of three (3) years, and at the expiration of the initial term (and any renewal term) of this Agreement, then this Agreement shall thereafter automatically renew for consecutive additional one (1) year terms. Either party may terminate this Agreement, unilaterally and without cause, at any time during the Agreement, for any reason whatsoever, or for no reason, in its sole and absolute discretion. If AFFILIATE termißnates this Agreement it must be in writing and delivered to FFUSA’S address via traceable (ex. certified mail, FedEx, UPS) delivery method. In the event of termination by FFUSA under this Paragraph 8, AFFILIATE shall continue to receive compensation subject to Paragraph 5 above.
9. Termination by FFUSA. Notwithstanding any terms to the contrary contained elsewhere in this Agreement, including without limitation thereto, the provisions of Paragraph 8 hereinabove to the contrary, and in addition to FFUSA’s right of termination provided in Subparagraphs 3(b) and 4(a) and (b) hereof, it is expressly understood and agreed that this Agreement may be terminated by FFUSA upon the occurrence of any of the following:
(a) Regulatory Order. FFUSA may immediately terminate this Agreement upon written notice to AFFILIATE in the event that FFUSA, AFFILIATE and/or Banks become subject to any change in a statute, law, rule, regulation, policy or other official pronouncement of any state or federal government entity, regulatory agency or of MasterCard and/or VISA which would prohibit FFUSA, AFFILIATE and/or Banks from continuing the business and or activities described in this Agreement.
(b) Breach of VISA/MasterCard Rules. FFUSA may immediately terminate this Agreement upon written notice to AFFILIATE; in the event that AFFILIATE materially violates any of the respective rules or regulations of VISA and/or MasterCard relating to the performance of AFFILIATE hereunder.
(c) Loss of VISA/MasterCard Membership; Bank Relationship. FFUSA may immediately terminate this Agreement upon written notice to AFFILIATE, in the event of any of the following: (i) FFUSA’s de-registration with VISA as an ISO and/or FFUSA’s de-registration with MasterCard as an MSP; (ii) termination of Banks applicable VISA and/or MasterCard license, its membership in VISA and/or MasterCard, or both, or in the event of de-registration of Banks by VISA and/or MasterCard; (iii) termination of FFUSA’s Merchant Program Management Agreement with Banks; or (iv) termination, loss, non-renewal or revocation of any applicable registration of AFFILIATE with VISA and/or MasterCard or ISO/MSP.
(d) Discretionary. FFUSA may terminate this Agreement at any time upon thirty (30) days notice to the AFFILIATE.
10. Termination by Either Party. In addition to any other remedies provided herein, and subject to Section 5 hereof either party may terminate this Agreement during its term immediately upon written notice to the other party, in the event of any of the following:
(a) Material Breach. The other party commits a material breach of any term or condition of this Agreement, and the breach is not cured within five (5) days after receipt of notice thereof in writing from the non-breaching party (or in the event such breach can be cured but cannot reasonably be cured within five (5) days, then within such longer period of time (not to exceed sixty (60) days) as is required to cure the same, provided the breaching party promptly commences and diligently pursues remedial action to completion).
(b) Insolvency. The other party files a voluntary petition in bankruptcy or files a petition seeking or acquiescing in any relief for itself under any present or future federal, state or other statute or law relating to bankruptcy, insolvency or other statute or law relating to bankruptcy, insolvency or other relief for debtors; or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of all or any part of its property; or admits in writing its inability to pay its debts generally as they become due.
(c) Dissolution. The other party is dissolved or otherwise ceases to engage in its normal business operations and is unable thereby to fulfill its obligations under this Agreement.
11. SALES MEMEBR may request to sell their Residual Income to FFUSA at any time and/or FFUSA may opt buy their Residual Income at any time under their agreement. The sale amount will be determined at the time of sale, but AFFILIATE would then also receive their relative dollar amount and be required to agree to an additional and extended Non-Interference (Section 4b) period of five (5) years from the date of each sale.
12. SPAM, copyright violations, unsolicited faxes, etc. AFFILIATE understands and agrees that there are state and or local and or Federal laws governing the sending of unsolicited texts, automated calls and or recorded messages, emails and faxes; FFUSA unconditionally forbids sending unsolicited emails (SPAM) and or unsolicited faxes, texts or recorded messages with FFUSA name, BANKS’ name or communication regarding any product or service offered by FFUSA or BANKS. Use of these methods will be considered a Material Breach (see Section 10). Any/all inquiries, complaints and or legal actions brought about or incurred by AFFILIATE directing or in any way sending unsolicited faxes and or emails will be directed directly to AFFILIATE. AFFILIATE will have the full and complete responsibility to respond to any such inquiries or complaints. Any and all expenses incurred by FFUSA in directing these matters to AFFILIATE will be the sole responsibility of the AFFILIATE and AFFILIATE agrees to reimburse FFUSA completely from any and all expenses including all related attorney’s fees and costs. If it is deemed by any court or law that FFUSA is at fault for emails, faxes or messages sent to address(es), fax number(s), phone numbers, SMS receiving devices or similar, by AFFILIATE, then AFFILIATE will be held liable by FFUSA pay all judgments, awards, fines, penalties and legal costs incurred by FFUSA. Further,
(a) AFFILIATE acknowledges and agrees that any and all advertising or materials used in any form of communication with FFUSA name, “BANK’S” name or likeness needs to be approved by FFUSA before use by AFFILIATE, failure to do so is considered a Material Breach (Section 10)
13. Indemnification. AFFILIATE shall indemnify, defend, and hold harmless FFUSA, Processing networks and ‘BANKS”, their employees, officers, directors, shareholders, agents, corporate parents and affiliates against any and all claims, liabilities, losses, damages, costs or expenses (including, without limitation, fees and expenses of attorneys and consultants and court costs) either directly or indirectly related or attributable to the negligence or wrongful act of AFFILIATE, or any of its employees, agents or nominees, in performance hereunder, or the breach of this Agreement or any provision hereof by AFFILIATE, or any of its employees, agents or nominees, any such action of AFFILIATE, or any of its employees, agents or nominees in any way associated with or related to this Agreement. This indemnification obligation of AFFILIATE shall include, without limitation, any and all claims for contractual, tortuous, exemplary, punitive or statutory damages of any nature whatsoever and any and all injunctive or other equitable relief. Furthermore, AFFILIATE shall fully indemnify the FFUSA for any liability, losses, chargebacks, ACH rejects. AFFILIATE’s covenants in this Paragraph 12 shall survive any termination of this Agreement.
14. Force Majeure. Neither party shall be liable for any failure to perform any obligations under this Agreement because of acts of God, Nature or a federal, state or local government agency, war, civil disturbance, labor disputes or shortages, electrical or mechanical breakdowns, or any other cause beyond the control of that party, including the issuance of an injunction by either a state or federal court prohibiting the party from carrying on its day-to-day operations as contemplated under the terms of this Agreement.
15. Confidential Information. AFFILIATE acknowledges that during the course of the relationship with the FFUSA, it will have access to the FFUSA’s confidential, proprietary, business information, including, but not limited to, business processes, customer lists, and customer target lists, the dissemination of which would likely result in irreparable injury to the FFUSA (“Confidential Information”). Such Confidential Information is the FFUSA’s property. AFFILIATE agrees at all times during the term of this Agreement and thereafter to hold in the strictest confidence, and not to use, except for the benefit of the FFUSA, or to disclose to any person, firm, or corporation without written authorization of the president of the FFUSA, the Confidential Information. AFFILIATE understands and acknowledges that this duty to always maintain the confidentiality of the FFUSA’s Confidential Information survives termination of this Agreement. AFFILIATE will ensure that any employees or independent contractors hired by it to perform AFFILIATE’s services hereunder will sign a confidentiality agreement requiring them to maintain the confidentiality of the Confidential Information and prohibiting them from use it for their benefit. Regardless of whether AFFILIATE obtains confidentiality agreements from its employees and independent contractors, AFFILIATE will indemnify FFUSA for all damages, costs, and expenses, including reasonable attorney fees, arising out of and/or incurred by FFUSA in connection with the disclosure or use of Confidential Information by any employee or independent contractor of AFFILIATE.
16. Non-Competition and Non-Solicitation. Not to be confused with Section 4(c) Non-Interference, AFFILIATE acknowledges that they will in the normal course of business with the FFUSA become aware of confidential information and business sensitive information including customer lists, processes, and the like. Therefore, AFFILIATE agrees that during the term hereof and for a period of two (2) years after termination of this Agreement in the case of 16 (c) and 16 (d) and two (2) years after termination of the merchant Agreement, in the case of 16(b), and whether with or without cause and whether initiated by the FFUSA or AFFILIATE, AFFILIATE will not:
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(b) Solicit or seek the business of, any customer or prospective customer of the FFUSA, whether on behalf of himself or as an owner, partner (general or limited), shareholder, director, officer, agent, AFFILIATE, contractor, member, advisor, consultant, or otherwise with, of, or in any person, firm, corporation, partnership, limited liability FFUSA, limited liability partnership, or other entity; and/or
(c) Solicit or seek the services of any employee, independent contractor, vendor, or subcontractor of the FFUSA to engage in a similar business to, or substantially the same business as, that of the FFUSA, whether for himself or on behalf of or in conjunction with any other party.
(d) For the purposes of this Agreement, references to any customer of the FFUSA shall include any person, firm, partnership, corporation, or other entity who or which does or did any business with the FFUSA during the twelve (12) month period immediately preceding termination of this Agreement. References to any prospective customer shall include any person, firm, partnership, corporation, or other entity who or which, during the twelve (12) month period immediately preceding termination of this Agreement, has been identified by AFFILIATE or the FFUSA as being in need of the FFUSA’s products or services or as being a potential source of business. AFFILIATE states and acknowledges that the term of this non-solicitation provision is reasonable and will not unduly restrict his ability to earn a living. AFFILIATE also states and acknowledges that this commitment is supported by sufficient valuable consideration, the receipt and sufficiency of which he hereby acknowledges. AFFILIATE understands and acknowledges that this duty of non-competition and non-solicitation survives termination of this Agreement and that AFFILIATE will advise future employers or contractors of such duty.
17. Intentionally left blank.
18. Return of Information and Work Product. Upon termination of this Agreement for any reason, AFFILIATE shall deliver to the FFUSA all Confidential Information and other property supplied to him by or relating to the FFUSA. Such property shall include all confidential information and trade secrets, all information relating to FFUSA’s customers or targets, all information relating to advertising and promotions, all information relating to business plans or strategy, all information related to the financial condition of the FFUSA, and all written and other materials and work product prepared by the FFUSA. Upon termination, AFFILIATE shall also provide to FFUSA all work product and work in progress prepared by AFFILIATE for FFUSA, in whatever form such work product or work in progress may be in at the time. AFFILIATE understands and acknowledges that this duty to return FFUSA’s Confidential Information and property and to provide work product and work in progress survives termination of this Agreement.
19. Remedies. AFFILIATE acknowledges that a breach of Sections 4b, 15, and 16, herein will cause irreparable injury to the FFUSA for which monetary damages will be inadequate. AFFILIATE acknowledges that the FFUSA will be entitled to obtain from any court of competent jurisdiction temporary and permanent injunctive relief necessary to enforce the provisions of Sections 4c, 15, and 16. Such temporary and permanent injunctive relief shall not be exclusive of any other legal remedies that the FFUSA may have upon breach of any provision of Sections 4b 15, and 16. In addition, AFFILIATE agrees to pay the FFUSA its costs of bringing any action for the violation of this Agreement, including, but not limited to, FFUSA’s attorney fees and costs. AFFILIATE acknowledges receiving sufficient good and valuable consideration for the commitment made in this Section.
20. Notice. Any notice that the parties are required or may desire to deliver, shall be delivered by facsimile transmission, with a confirming copy sent by United States mail, certified or registered, return receipt requested, proper postage prepaid to the other party at the address set forth herein below. Such notice shall be deemed delivered on the first (1st) business day following the facsimile transmission, provided that the sender can reasonably demonstrate its receipt or in the of proof of facsimile transmission, on the first (1st) business day after the date of mailing.
21. Mutual Warranties. Each Party to this Agreement warrants to the other Party all of the following: (a) it is duly organized and validly existing under the laws of the state wherein its principal offices are located and is in good standing in every other state where it is doing business; (b) it has all necessary rights, title, license and authority to enter into this Agreement; (c) the person(s) signing this Agreement on its behalf has full authority to bind it to the terms and conditions hereof; (d) performance by it of its duties and obligations under this Agreement has been duly authorized by all necessary action, will not violate any provision of its organization documents, or any amendment thereof, or constitute or result in a violation or breach under, nor conflict with, any statute or other law, any order or ruling of any court or tribunal, or any rule or regulation of any administrative agency or regulatory authority; and (e) with or without the lapse of time after the giving of notice by a third party, will not violate any provision of, nor constitute or result in a violation or default under, or conflict with any contract, agreement, instrument or other undertaking to which it is a party or by which it or any of its properties or assets may be bound or affected.
22. Governing Law. This Agreement and all the documents referred to herein, shall in all respects, be interpreted, enforced and governed by and under the laws of the state of Minnesota.
23. Jurisdiction and Venue. AFFILIATE and FFUSA agree that the State of Minnesota has jurisdiction in any dispute or lawsuit that arises between the parties or pursuant to this agreement. Each party to this Agreement agrees not to bring or participate in a class, AFFILIATE or private attorney general action against any other party to this Agreement in court or arbitration. AFFILIATE and FFUSA further agree that all disputes or litigation shall be venued in the Fourth Judicial District, County of Hennepin, State of Minnesota.
24. Communications. AFFILIATE consents to the FFUSA, as well as any other person or FFUSA acting on its behalf, contacting AFFILIATE through any channel of communication and for any purpose. For communications related to this Agreement or the FFUSA, AFFILIATE agrees that the FFUSA, as well as any person or FFUSA acting on its behalf, may use the phone numbers that AFFILIATE provides to the FFUSA to contact AFFILIATE’s cellular phone or wireless device, and any other of AFFILIATE’s devices, with text messages, artificial or prerecorded voice calls, and calls made by an automatic telephone dialing system, or to send faxes to AFFILIATE. This consent applies even if AFFILIATE is charged for the call under AFFILIATE’s plan. AFFILIATE is responsible for any charges that may be billed to AFFILIATE by AFFILIATE’s communications carrier when the FFUSA contacts AFFILIATE. AFFILIATE also agrees that the FFUSA may monitor or record any telephone calls between AFFILIATE and the FFUSA or any person or FFUSA acting on behalf of the FFUSA.
25. Background Check Inquiry Release. AFFILIATE hereby expressly authorizes FFUSA to obtain, from time to time, credit, financial and other information regarding AFFILIATE (including information regarding prior criminal convictions) and any business for which AFFILIATE is a principal, from other persons or entities, including commercial and consumer reporting agencies and private investigators. AFFILIATE expressly consents to such background investigation and hereby releases FFUSA from any and all claims, demands or liabilities arising out of or in any way related to such investigation.
26. Assignment. No interest or right of AFFILIATE under this Agreement shall be assigned or transferred in any manner by AFFILIATE without the express written consent of FFUSA. FFUSA may assign this Agreement at any time without prior written notice to AFFILIATE. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.
27. Counterparts. This Agreement may be executed in one or more counterparts, by facsimile, each of which shall be deemed an original and all of which, taken together, shall constitute a single agreement. All signatories agree to execute a conformed copy of this Agreement within thirty (30) days of the execution of counterparts thereto.
28. Invalidity. Should any portion of this Agreement be held to be invalid, unenforceable or void, such holding shall not have the effect of invalidating or voiding the remainder of this Agreement and the parties hereby agree that the portion held invalid, unenforceable or void, shall, if possible, be deemed amended or reduced in scope, or otherwise be stricken from the Agreement, to the extent required for the purpose of the validity and enforcement hereof.
29. Authority. All signatories executing this Agreement hereby represent that they have the full right, capacity and authority to enter into this Agreement and perform the Agreement set forth herein.
30. Waiver. No waiver of any term, covenant, condition or obligation of this Agreement, or any breach thereof, shall be effective unless granted in writing. The waiver by any of the parties of any term, covenant, condition or obligation herein contained or of any breach thereof, shall not be deemed to be a waiver of any other term, covenant, condition or obligation herein contained or any prior, concurrent or subsequent right hereunder. The respective rights and remedies of FFUSA and AFFILIATE under this Agreement shall be cumulative, and the exercise or partial exercise of any such right, remedy or privilege shall not preclude the exercise of any other right, remedy or privilege. The nonexercise or partial exercise by either Party of any right, remedy or privilege under this Agreement shall not impair or preclude the future exercise by that Party of that same or any other right, remedy or privilege under this Agreement. The provisions of this Paragraph 30 shall survive any termination of this Agreement.
31. Captions. The captions in this Agreement are for convenience only and shall not be considered a part hereof or affect the construction or interpretation of any provision hereof.
32. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior agreements, understandings and contracts between the parties with respect to the subject matter hereof. AFFILIATE further understands that the terms of this Agreement, including any Attachments, Schedules (including Schedule “A”) and/or Addendums may change at any time as determined by the FFUSA. FFUSA will make its best effort to give AFFILIATE at least 10 days notice of such change, except where change is out of FFUSA’s control. Any exhibits and/or Schedules referred to herein and attached hereto is/are hereby expressly incorporated herein in its/their entirety and made a part of this Agreement. All defined terms under this Agreement shall have the same meanings in any exhibit and/or Schedule referred to herein, except that, in the event of any conflict between any of the provisions of such exhibit and/ or Schedule and the provisions of this Agreement, the provisions of this Agreement shall prevail. In the event of any inconsistency between any provision of this Agreement with applicable Card Association rules, the applicable Card Association rules shall be afforded precedence and shall apply.